This case is about discrimination against women who wear religious symbols.

LEAF, in partnership with the Fédération des Femmes du Québec (FFQ), intervened before the Quebec Court of Appeal.

Facts

Law 21, An Act Respecting the Laicity of the State, restricts the wearing of religious symbols in certain professions with the goal of affirming Québec as a secular state.

For example, women who wear hijabs can no longer be hired as teachers. Women who wear niqabs are prohibited from working in most parts of public administration. Further, women who wear niqabs cannot benefit from public services because the law requires that individuals who wish to receive public services must do so with their faces uncovered. 

The government, well aware that its law infringes equality rights, freedom of expression, and freedom of religion, pre-emptively used the override clause to prevent any constitutional challenges.

Arguments

LEAF and the FFQ argued that the law infringes gender equality, in particular by discriminating against women who wear religious symbols.  

As interveners, LEAF and the FFQ proposed an analytical framework to the Court of Appeal that will allow for a little-known provision of the Canadian Charter of Rights and Freedoms, section 28, to be used to its full potential. The organizations argued that this provision ensures the protection of gender equality, even when a government chooses to use the override clause.

The section 28 gender equality guarantee was included in the Charter to ensure that women and gender-diverse people would have the same rights as men, and to ensure that the state could not engage in gender-based discrimination with impunity. In a case such as this one, where women are so clearly disproportionately harmed by the effect of a law, the gender equality guarantee steps in to declare the law unconstitutional.

Outcome

The Court of Appeal of Quebec decided that the notwithstanding clause overrides the gender equality guarantee set out in section 28 of the Charter. This means that even where a law has disproportionate discriminatory impacts on the rights of women, and in this case the rights of Muslim women, it can still remain in effect.

This decision significantly undermines the gender equality guarantee set out at section 28 of the Canadian Charter of Rights and Freedoms. The FFQ and LEAF are profoundly disappointed in this decision, as it perpetuates and legitimizes the systemic discrimination of women, and in particular Muslim women in Quebec.

We remain in solidarity with women affected by Bill 21. The fight for women to choose how to live their lives, the struggle for justice and equality, and the fight against racism and Islamophobia continues.

LEAF and the FFQ are grateful to their counsel at Langlois Avocats, Geneviève Claveau, Sean Griffin, Lana Rackovic, Véronique Roy, and Fady Toban, for their pro bono representation before the Court of Appeal. 

LEAF and the FFQ are also grateful to Natasha Bakht, Safa Ben Saad, Dolores Chew, Samaa  Elibyari, Nancy Labonté, Laïty Ndiaye, Nathalie Léger, Samira Laouni, Colleen Sheppard, and Sandra Wesley.  This intervention would not have been possible without their work, advice, and support.

See the Court of Appeal’s decision here.

See LEAF’s factum (translated from French) here.